It is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year but, you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their distaste for the April 1st filing date for “cap” subject H-1B professional and specialty occupation workers.

Well, here we go again . . .

On April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (”DOL”) for and Labor Condition Application (”LCA”) and Petition to the U.S. Citizenship and Immigration Services (”CIS”) for H-1B visa petitions for employment in the fiscal 2012-2013 year (”FY 2013″). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees who will be eligible for a first-time H-1B visa to begin their employment on or after October 1st, 2012.

Each Fiscal Year, Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the equivalence of a U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. This reduces the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office assisted students who had to deal with the “cap-gap” issue. We also assist employers with E-Verify applications so that they can offer international students the 17 month STEM extensions.

In 2008 there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. In 2008, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in Optional Practical Training (OPT) were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT. Also, many Science, Technology, Engineering and Mathematics (”STEM”) students continue to use the 19 month extension as a way to have the time they need to petition in the appropriate H-1B cycle. However, to get the STEM extensions, the employer needs to be enrolled in E-Verify.

For the last three (3) fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation lasted until November. However, in previous years, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available. This required the CIS to conduct a “lottery” and only one of three visas submitted was accepted for processing by the CIS. The demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that “economic recovery” is on the way. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, or as soon thereafter as possible.

Employers Feel the VIBE . . . Look Out For A New Validation Instrument for Business Enterprises (”VIBE”).

CIS announced in its several recent stakeholders meetings that it will continue to use a new web-based tool called the Validation Instrument for Business Enterprises (”VIBE”). The VIBE program is purportedly designed to enhance the speed and accuracy for the adjudication of certain employment-based immigrant and nonimmigrant petitions. The VIBE Program uses public information and previously accumulated data by third party provides to validate data about the organizations that file petitions for the temporary and permanent employment of foreign national workers in the U.S.

The VIBE Program allows CIS to electronically “ping” databases. One such database is Dun & Bradstreet (”D&B”). The D&B database contains information about the petitioner organization including, but not limited to:

1. Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive);

2. Financial standing including sales volume and credit standing;

3. Number of employees including onsite and globally;

4. Relationships with other entities including foreign affiliates;

5. Status, for example, whether it is a single entity, branch, subsidiary or headquarters;

6. Ownership and legal status, such as LLC, partnership or corporation;

7. Company executives;

8. Date of establishment as a business entity; and

9. Current physical address.

The idea is that a CIS adjudicator will consider the information submitted by the H-1B petitioner and also compare that information to the information that they glean from VIBE. Since the VIBE database is not fully populated it is likely that H-1B petitions will continue to be met with requests for evidence (”RFEs”), when the H-1B petitions are submitted to the CIS. The receipt by an employer of an RFE is likely to cause delays in processing of the H-1B (even when the cases are submitted with premium processing requests.

As an aside, the CIS also announced that they are working on an electronic registration for H-1B employers to attempt to more streamline the process and to avoid the “run on cap-subject H-1Bs” that has occurred in prior years. The CIS announced a proposed rule that would establish a system which will allow an H-1B employer to submit an electronic registration prior to the submission of the H-1B. The idea is behind the registration is that before April 1st, the CIS will be able to predict how many visas are being demanded by cap subject H-1B employers/employees. The implementation of this system is still in its genesis

Other changes in the H-1B arena that employers need to know include: (1) that CIS announced a review of its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education (examples include teaching hospitals that are affiliated with medical schools or organizations affiliated with nonprofit colleges or universities; and (2) that U.S. employers seeking to sponsor foreign nationals on H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A visas must certify to compliance with Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).

For any additional information about the 2012-2013 “H-1B season”, please feel free to contact our offices at [email removed]

The Nachman Phulwani Zimovcak Law Group P.C. is ready to assist you with any and all of your immigration law needs in the U.S.

Please feel free to contact our offices at 201-670-0006 (x100) for David Nachman, Esq., (x124) for Michael Phulwani, Esq., and (x105) for Ludka Zimovcak, Esq.

We also have Canadian Lawyers on our staff to assist you with transfers to Canada and we have an affiliated office in Mumbai, India.

Read more: http://newyork.ebayclassifieds.com/legal-lawyer/new-york/u-s-immigration-law-h-1b-season-is-upon-us-beware-the-cap-gap/?ad=16799191#ixzz1lWYgIRHI

Release Date: October 26, 2011 – Rayburn House Office Building

Introduction

Chairman Smith, Ranking Member Conyers, and members of the Committee:

Thank you for the opportunity to testify today about the Department of Homeland Security’s (DHS) efforts to secure our Nation from the many threats we face.

This committee continues to play a critical role in helping the Department in our security mission, and I am grateful for the chance to update you on the progress we are making. The Department has six mission areas:

Preventing terrorism and enhancing security;
– Securing and managing our borders;
– Enforcing and administering our immigration laws;
– Safeguarding and securing cyberspace;
– Ensuring resilience to disasters; and
– Providing essential support to national and economic security.

In each area, we have continued to grow and mature as a department by strengthening our existing capabilities, building new ones where necessary, enhancing our partnerships across all levels of government and with the private sector, and streamlining our operations and increasing efficiency.

Now, eight years since the Department’s creation, and ten years after the September 11, 2001, terrorist attacks, I believe the results are clear: a more effective and integrated Department, a strengthened homeland security enterprise, and a more secure America that is better equipped to confront the range of threats we face.

Today, I would like to focus on a few areas of interest to this Committee, including law enforcement and its work to prevent terrorism and enhance security; enforcing and administering our immigration laws; and securing and managing our borders while facilitating legitimate trade and travel.

Preventing Terrorism and Enhancing Security Response to a Changing Threat

As I have noted on a number of occasions before Congress, the United States has made important progress in securing our Nation from terrorism since the September 11, 2001, attacks. America is stronger than we were a decade ago. We have bounced back from the worst attacks ever on our soil, and have made progress on every front to protect ourselves. Our experience these last ten years also has made us smarter about the threats we face, and how best to deal with them. We have used this knowledge to make ourselves more resilient, not only to terrorist attacks, but also to threats and disasters of all kinds. Nevertheless, the terrorist threat facing our country has evolved significantly in the last ten years, and continues to evolve.

Indeed, this threat will continue to change in the wake of successful operations that ended in the deaths of Osama bin Laden and Anwar al-Awlaki. These operations mark the most significant achievements to date in our nation’s effort to defeat al Qaeda. I commend the President and the men and women of the Intelligence Community and our Armed Forces, as well as our counterterrorism professionals, who played such an important role in these operations.

Yet we know that threats of terrorism did not begin with the September 11, 2001, attacks, nor did they end with the deaths of these two terrorist leaders. Today, in addition to the direct threats we continue to face from core al-Qaeda, we face growing threats from al-Qaeda affiliates, including al Qa’ida in the Arabian Peninsula, al Qa’ida in Iraq, and Al Shabaab.

Perhaps most crucially, we face a threat environment where violent extremism is not defined or contained by international borders. Today, we must address threats that are homegrown as well as those that originate abroad.

What we are seeing now in some cases reflects a conscious effort by terrorists to recruit people who are already in the United States. We continue to operate under the assumption, based on intelligence and arrests that individuals prepare to carry out terrorist attacks and acts of violence, some of which may be in the United States, with little or no warning.

This threat of homegrown violent extremism fundamentally changes who is positioned to spot, investigate, and respond to terrorist activity. More and more, state and local law enforcement officers are likely to be in a position to notice early signs of terrorist activity. This has profound implications for how we go about securing our country against the terrorist threat.

DHS Efforts against Terrorism

Over the past two years, DHS has been working diligently to build a new architecture to better defend against this evolving terrorist threat.

First, we are working directly with law enforcement and community-based organizations to counter violent extremism at its source, using many of the same techniques and strategies that have proven successful in combating violence in American communities. In the past, law enforcement officials at the state, local, tribal and federal levels are leveraging and enhancing their relationships with members of diverse communities that broadly and strongly reject violent extremism.

Second, we are focused on getting resources and information out of Washington, D.C. and into the hands of state and local law enforcement, to provide them with the tools they need to combat threats in their communities. Because state and local law enforcement are often well-positioned to notice the early signs of a planned attack, our homeland security efforts must be interwoven in the police work that state, local, and tribal officers do every day. We must make sure that officers everywhere have a clear understanding of the tactics, behaviors, and other indicators that could point to terrorist activity.

Consistent with the vision of Congress and the direction the President has set for a robust information sharing environment, DHS is providing training programs for local law enforcement to help them identify indicators of terrorist activity. And we are also improving and expanding the information-sharing mechanisms by which officers are made aware of the threat picture and what it means for their jurisdictions.

Our work in this area includes the current implementation of a Countering Violent Extremism (CVE) curriculum for state and local law enforcement that is focused on community-oriented policing, which will help frontline personnel identify activities that are indicators of potential terrorist activity and violence. In conjunction with local communities and the Department of Justice (DOJ), we also have published guidance on best practices for community partnerships to prevent and mitigate homegrown threats.

In addition, we hold regular meetings and briefings with state and local law enforcement, state and local governments, and community organizations.

We have issued, and continue to release, unclassified case studies that examine recent incidents involving terrorism so that state and local law enforcement, state and local governments, and community members can understand the warning signs that could indicate a developing terrorist attack.

We participate in the FBI’s Joint Terrorism Task Forces (JTTF), provide support for state and local fusion centers, and work with our partners at DOJ on the Nationwide Suspicious Activity Reporting Initiative, which trains state and local law enforcement to recognize behaviors and indicators related to terrorism, crime and other threats; standardize how those observations are documented and analyzed; and expand and enhance the sharing of those reports with the Federal Bureau of Investigation (FBI) and DHS.

We also are encouraging Americans to alert local law enforcement if they see something that is potentially dangerous through the nationwide expansion of the “If You See Something, Say Something” campaign – a clear and effective means to raise public awareness of indicators of terrorism and crime, and emphasize the importance of reporting suspicious activity to the proper law enforcement authorities. We have seen the value of public awareness time and again and the importance of having suspicious activities quickly forwarded to the FBI-led JTTFs for investigation.

Indeed, it was an alert street vendor in Times Square that helped thwart a successful attack in May, 2010 by reporting a suspicious vehicle to law enforcement. In January of this year, alert city workers in Spokane, Washington, reported a suspicious backpack and prevented what almost certainly would have been a deadly bombing along a busy parade route. More recently, a store employee in Killeen, Texas reported the suspicious behavior of one of his customers to authorities, potentially averting another deadly attack at the Fort Hood Army Base.

In April, DHS replaced the color-coded alert system, created shortly after the 9/11 attacks, with the new National Terrorism Advisory System (NTAS)—a robust terrorism advisory system that provides timely information to the public and the private sector, as well as to state, local, and tribal governments about credible terrorist threats and recommended security measures.

Taken together, these steps provide a strong foundation that DHS; the public; federal, state, local, tribal, territorial and private sector partners across the country; and international partners can all use to protect communities from terrorism and other threats. This homeland security architecture will be paired with continuing efforts to better understand the risk confronting the homeland, to engage and partner with the international community, and to protect the privacy rights, civil rights and civil liberties of all Americans.

Strong, Strategic Enforcement of Our Immigration Laws

I would also like to describe this Administration’s approach in enforcing our Nation’s immigration laws, and the important results that have been achieved as a result of these efforts.

Over the past two and a half years, this Administration has dedicated unprecedented resources to securing the Southwest border, and we have made the enforcement of our immigration laws smarter and more effective.

Security along our borders is inseparable from immigration enforcement in the interior of our country, and both are critical to an effective immigration system. Our approach to immigration enforcement is guided by a common-sense premise based on sound prosecutorial practice: establish clear priorities and implement measures that best promote those priorities. We have focused on identifying and prioritizing for removal those who pose a threat to our communities, including criminal aliens; as well as repeat and egregious immigration law violators; recent border crossers; and immigration fugitives. We also have worked to ensure that employers have the tools they need to maintain a legal workforce, and face penalties if they knowingly and repeatedly violate the law.

Our interior enforcement efforts are achieving unprecedented results, underscoring the Department’s ongoing focus on removing individuals from the country that fall into the Administration’s priority areas for enforcement. Overall, in FY 2011, ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals – the largest number in the agency’s history. Of these, 55 percent or 216,698 of the people removed were convicted criminal aliens – an 89 percent increase in the removal of criminals since FY 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of dangerous drugs; and 35,927 aliens convicted of driving under the influence. ICE achieved similar results with regard to other categories prioritized for removal. Ninety percent of all ICE’s removals fell into a priority category and more than two-thirds of the other removals in 2011 were either recent border crossers or repeat immigration violators.

Secure Communities

A major part of this success can be attributed to the expansion of Secure Communities, an information-sharing partnership between DHS and the FBI that uses fingerprints taken when individuals are booked into state prisons and local jails to identify removable aliens who have been arrested and booked for the commission of a non-immigration related criminal offense. Secure Communities is an important and valuable tool that helps ensure that the finite immigration enforcement resources of the federal government are used most effectively to improve public safety and remove those who violate both our immigration and criminal laws.

ICE receives an annual appropriation from Congress sufficient to remove a limited number of the more than 10 million individuals estimated to be in the United States who lack lawful status or are removable based on their criminal history. Given this reality, ICE has set as a clear and common-sense priority the identification and removal of criminal aliens and those who have been booked into jail for the commission of a non-immigration related criminal offense. Secure Communities is critical to implementation of this approach.

As they have for decades, local jails share fingerprint data with the FBI to run against FBI criminal databases. FBI, in line with Congressional mandates, then shares this information with DHS to run against its immigration databases. Since 2008, ICE has expanded Secure Communities from 14 jurisdictions to more than 1,595 today, including every jurisdiction along the Southwest border. As a result of ICE’s use of this enhanced information-sharing capability which began in October 2008, ICE has removed more than 105,000 criminal aliens — more than 37,000 of whom were convicted of felonies such as murder, rape, kidnapping and the sexual abuse of children through the end of FY 2011. ICE continues to work with its law enforcement partners across the country to responsibly and effectively implement this federal information sharing capability and plans to reach complete nationwide activation by 2013.

Secure Communities is an important and valuable tool to enforce our immigration laws and promote public safety. Nonetheless, no program is perfect, and there is always room to improve. In June, ICE Director John Morton announced a number of steps and changes that will help to improve the program and clarify its goals to law enforcement and the public.

These improvements include the creation of a quarterly statistical review of the program by ICE and the Office of Civil Rights and Civil Liberties (CRCL). To implement this review, ICE and CRCL have retained a leading statistician who is examining data for each jurisdiction where Secure Communities is activated to identify any inconsistencies in the program or indications of racial or ethnic profiling. Statistical outliers will be subject to more in-depth analysis and, if problems are identified, they will be rectified.

In addition, ICE and CRCL are developing a new series of training tools, including written materials and videos for state and local law enforcement agencies in jurisdictions where Secure Communities is activated. These training materials will provide information for state and local law enforcement about how Secure Communities works and related civil rights issues. The first set of training materials was released in June 2011 with more to follow.

ICE has created a new complaint process for Secure Communities, and will jointly run an intake center with CRCL to investigate allegations with local jurisdictions. ICE also launched a new public website that answers questions about Secure Communities and provides a complete and accurate statistical overview of the program.

ICE works closely with local law enforcement agencies to ensure victims and witnesses of crimes it encounters are properly identified and treated appropriately. At my direction, ICE, in consultation with CRCL, has developed a new policy specifically to protect crime victims, especially victims of domestic violence, which will help to prioritize the use of ICE resources on the removal of perpetrators of crimes, rather than victims and witnesses.

ICE has taken steps to clarify some matters related to Secure Communities that have not always been clear in the past. ICE eliminated the Memorandums of Agreement (MOAs) that created confusion about the proper role of state and local governments and updated its detainer form to clarify the longstanding rule that state and local authorities are not to detain an individual for more than 48 hours except for holidays and weekends. The new detainer form also requires state and local law enforcement to provide the arrestees with a copy of the form, which includes a number to call if they believe their civil rights have been violated by ICE. The revised form includes information in six languages on how to file a complaint.

All of these steps and changes are improving the Secure Communities program as a tool that pursues important public safety goals. These measures will further clarify and further those goals.

Prosecutorial Discretion

There have never been, nor will there be in tight fiscal times, sufficient resources to remove all of those unlawfully in the United States or who are otherwise removable. At DHS, we work to ensure our immigration enforcement resources are focused on the removal of those who constitute our highest priorities, specifically individuals who pose threats to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators, recent border entrants, and immigration fugitives. There are hundreds of thousands of cases currently pending before DOJ immigration courts, many of which could take years to resolve. Tens of thousands more are pending review in federal courts. Each of these cases costs considerable taxpayer dollars, and those involving low priority individuals divert resources away from and delay the removal of higher priority individuals. The expenditure of significant resources on cases that fall outside of DHS enforcement priorities hinders our public safety mission by consuming litigation resources and diverting resources away from higher-priority individuals.

The former Immigration and Naturalization Service under DOJ, and later ICE under DHS, have always used discretion on a case-by-case basis where appropriate and responsible to do so, and where it enhances our ability to meet our priorities. In keeping with this practice, DHS and DOJ have recently established an interagency working group to implement existing guidance regarding the appropriate use of prosecutorial discretion in a manner consistent with our enforcement priorities.

This interagency working group will allow immigration judges, the Board of Immigration Appeals, and the federal courts to focus on adjudicating high priority removal cases more swiftly. In part, the process designed by the working group will identify low priority cases and on a case-by-case basis, set those cases aside. This will permit additional DHS resources to focus on the identification and removal of those individuals who pose greater threats. As a result, this process will accelerate the removal of high priority aliens from the United States. At no point will any individuals be granted any form of “amnesty.” There will be no reduction in the overall levels of enforcement and removals – only a more effective way of marshaling our resources towards our highest-priority cases and thus, increasing the number of criminal aliens, recent border crossers, and repeat immigration violators who are removed.

Likewise, the civil enforcement prioritization will enhance ICE’s partnership with U.S. Customs and Border Protection (CBP). Over the past few years, ICE has worked closely with CBP to increase efforts to prevent illicit trade and travel across our borders. This partnership includes the dedication of ICE officers, agents, and detention facilities to the apprehension and detention of recent border crossers. The record-setting results achieved along the Southwest Border are attributable, in part, to this unprecedented partnership. Notably, by freeing up ICE resources that had previously been devoted to low priority cases, this process will make available additional ICE resources that DHS will dedicate to the Southwest border.
Worksite Enforcement and E-Verify

DHS has implemented a smart and effective approach to worksite enforcement. By focusing on employers who knowingly and repeatedly hire illegal labor, we are targeting the root cause of illegal immigration, utilizing robust Form I-9 inspections, civil fines, and debarment, and enhancing compliance tools like E-Verify. Since Fiscal Year 2009, ICE has audited more than 6,000 employers suspected of hiring illegal labor, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions—more than the total amount of audits and debarments during the entire previous administration. In Fiscal Year 2011, ICE also criminally arrested 221 employers accused of violations related to employment, an agency record. In short, our approach to worksite enforcement has been working, and has been successful at bringing employers into compliance with the law.

As a corollary, we have strengthened the efficiency and accuracy of E-Verify – our web-based employment verification system managed by U.S.
Citizenship and Immigration Services (USCIS) and designed to assist employers in complying with the law. As of Fiscal Year 2011, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In Fiscal Year 2011 alone, E-Verify processed 17.4 million employment queries.

In March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. This voluntary, free, fast, and secure service gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration records before applying for jobs, thereby making the process more efficient for employees and employers. The Self Check service is currently available in both English and Spanish to users who maintain an address in 21 states and the District of Columbia. Self Check will be available nationwide by March 2012.

USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways. To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify. Because of this enhancement, in Fiscal Year 2011, more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as employment authorized. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. USCIS also has increased its staff dedicated to E-Verify monitoring and compliance, adding 80 staff positions to support monitoring and compliance since the beginning of Fiscal Year 2010. Finally, to more effectively address identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.

Identifying Visa Overstays

Over the past two years, DHS has accelerated efforts to synchronize, integrate, and streamline the Department’s vetting capabilities in order to increase efficiency and effectiveness of DHS screening efforts. The enhanced biographic program is a primary example. Previously, as part of the review process, a potential visa overstay record would undergo three automated searches against other government systems. A record that could not be closed during those automated searches would then be manually validated through up to 12 federal systems. This process was time consuming, expensive, and led to a backlog of un-reviewed records.

In May 2011, the Department began a coordinated effort to vet all potential overstay records against Intelligence Community (IC) and DHS holdings for national security and public safety concerns. In total, the Department reviewed the backlog of 1.6 million overstay leads within the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) and referred leads based on national security and public safety priorities to ICE for further investigation.

Through a new automated system currently under construction, we will be able to enrich data sources, enhance automated matching, eliminate gaps in travel history, and aggregate information from multiple systems into a unified system. As a result, DHS will be able to quickly and accurately identify overstays, and prioritize those who constitute a threat to national security or public safety.

Over the past two years, DHS has expanded its partnership with the NCTC. Today, NCTC is an integral part of DHS efforts to screen and vet those seeking to travel to, or receive immigration benefits from the US. Those who travel to the US or seek immigration benefits are screened against a broad array of data repositories, including those maintained by NCTC. This has allowed DHS to identify those persons who pose a public safety or national security risk prior to their entering to US, or as part of our efforts to determine admissibility or deportability.

In addition, the biometrics interoperability mandated by Congress continues to show significant success. Biometrics sharing through the Terrorist Screening Center (TSC) has resulted in more than 3.5 million terrorist record searches to date. More than 50,000 10-print fingerprint devices are now in use worldwide. There are many success stories resulting from the work of the TSC. For example, in May 2011, an applicant for U.S. immigration benefits was positively matched against a Department of Defense detainee who had interfered with an investigation by stealing evidence in Afghanistan.

Human Trafficking and Human Smuggling Investigations

Combating human trafficking and protecting victims also remain a priority for DHS. In July 2010, DHS launched the Blue Campaign to coordinate and enhance the Department’s anti-human trafficking efforts. Seventeen of our components are involved in the Blue Campaign, which harnesses and leverages various DHS authorities and resources. The Blue Campaign also provides a variety of informational resources and materials about human trafficking to help raise awareness of this important issue among the public, law enforcement, and our international partners.

To support this effort, we have trained officers, prioritized the identification of traffickers and their victims, and coordinated enforcement action against traffickers. DHS continues to educate its personnel, as well as state and local law enforcement agencies and citizens, to identify and report indicators of human trafficking. Through our education and outreach efforts, we are able to help citizens and state and local law enforcement agencies to identify victims of human trafficking in the United States. For example, in 2010, investigations led to the arrest of 29 individuals in Nashville, TN, for the sex trafficking of juveniles, and the conviction and sentencing of a woman in New Jersey for trafficking women and girls for forced labor.

We also have played a critical role in providing victim assistance to foreign victims of trafficking in the United States. Through Continued Presence and T and U nonimmigrant status, DHS permits eligible victims of trafficking to remain in the United States for an extended period of time, allowing them to assist with criminal investigations and prosecutions. Eventually, eligible individuals can then apply for permanent resident status.

In addition, ICE works closely with our interagency and international partners to disrupt and dismantle international human smuggling and trafficking networks and organizations. ICE’s “Operation Predator” targets and investigates human smugglers and traffickers of minors, as well as child pornographers, child sex tourists and facilitators, criminal aliens convicted of offenses against minors, and those deported for child exploitation offenses who have returned illegally. Since its launch in 2003, Operation Predator has resulted in the arrest of over 13,594 sexual predators, of which 10,975 were non-citizens. In Fiscal Year 2012, ICE will expand its Child Exploitation Section by establishing the Child Exploitation Center and deploying Child Sex Tourism Traveler Jump Teams to conduct investigations of U.S. citizens traveling in foreign counties for the purpose of exploiting minors.

The Department of Homeland Security is also re-energizing the Human Smuggling and Trafficking Center (HSTC), an interagency information and intelligence fusion center and clearinghouse that helps in coordinating the U.S. Government’s efforts against human smuggling, human trafficking, and criminal smuggler facilitation of terrorist travel. Besides facilitating the broad dissemination of information and producing strategic assessments, the HSTC is also supporting efforts against smuggling and trafficking networks.

Refugee Screening Efforts

Over the past 25 years, the United States has sheltered over a million refugees fleeing armed conflict, ethnic cleansing, persecution, and torture. DHS, and specifically ICE, bears a unique responsibility in protecting those who came to the United States seeking to escape those who perpetrated such atrocities, while ensuring human rights violators are not allowed to enter our country. ICE is committed to ensuring the United States does not become a safe haven for human rights abusers.

Today, ICE is handling more than 1,900 human rights-related cases. These cases are at various stages of investigation and litigation, including removal proceedings. They involve suspects from approximately 95 countries, primarily in Central and South America, the Balkans, and Africa. ICE currently has more than 200 active human rights investigations, which could ultimately support criminal charges or removal proceedings. Since Fiscal Year 2004, ICE has successfully removed more than 400 known or suspected human rights violators and more than 75 suspected human rights violators have been prevented from entering the United States either by visa revocations or refusals by the Department of State or by stops at ports of entry by CBP officers.

Southwest Border Enforcement

In March 2009, the Obama Administration launched the Southwest Border Initiative to bring focus and intensity to Southwest border security, coupled with a reinvigorated, smart and effective approach to enforcing immigration laws in the interior of our country. We are now more than two years into this strategy, and based on previous benchmarks set by Congress, it is clear that this approach is working.

Unprecedented Resources at the Southwest Border

Under the Initiative, we have increased the number of Border Patrol Agents deployed to the Southwest border to more than 18,000 which is more than twice the number stationed in the region in 2004. We have doubled personnel assigned to Border Enforcement Security Task Forces (BEST), which work to dismantle criminal organizations along the border. We have increased the number of ICE intelligence analysts along the border focused on cartel violence. In all, a quarter of ICE’s personnel are now in the region, the most ever. We have tripled deployments of Border Liaison Officers to work with their Mexican counterparts, and we are now screening all southbound rail traffic and a random number of other vehicles for illegal weapons and cash that are helping fuel the cartel violence in Mexico.

In terms of border infrastructure, we have constructed a total of 650 miles of fencing out of nearly 652 miles where Border Patrol field leadership determined it was operationally required, including 299 miles of vehicle fence and 351 miles of pedestrian fence. The remaining two miles will be completed by April 2012. With our share of the $600 million provided in the 2010 emergency border security supplemental appropriation act (Public Law 111-230), we have added more technology, manpower, and infrastructure including 1,000 new Border Patrol Agents by the end of Fiscal Year 2011; 250 new CBP officers at ports of entry; and 250 new ICE special agents investigating transnational crimes.

We are also improving our tactical communications systems, adding two new Border Patrol forward operating bases and three more CBP unmanned aircraft systems. For the first time, we now have Predator Unmanned Aircraft System coverage along the Southwest border from the California-Arizona border to the Texas Gulf Coast. These investments are augmenting the additional non-intrusive inspection systems, Remote Video Surveillance Systems, thermal imaging systems, radiation portal monitors, mobile license plate readers, and other technologies that CBP has deployed to the Southwest border over the past two years, along with the mobile surveillance equipment that will be purchased with Fiscal Year 2011 funding and deployed in every Border Patrol sector in Arizona.

The DHS Science and Technology Directorate (S&T) also has multiple ongoing efforts to develop, test, and implement new technology for use at the border. These efforts include Tunnel Activity Monitoring (TAM) sensors, technology evaluation for the detection of clandestine tunnels, enhanced sensor capabilities for Mobile System Surveillance units, advanced Unattended Ground Sensor (UGS) features, a border buried cable tripwire, and airborne wide area surveillance. The S&T Directorate also has supported CBP by providing comparative testing of state-of-the-art radars and UGS, the results of which will provide an independent assessment of their performance and help define future requirements for technology procurement.

Since 2009, DHS also has provided $167 million in Operation Stonegarden funding to Southwest border law enforcement agencies – a record amount – to pay for overtime costs and other border-related expenses.

Because partnerships with federal, state, local, and tribal law enforcement agencies, as well as the private sector, remain critical to our overall success, we have initiated new programs to increase collaboration, enhance intelligence and information sharing, and develop coordinated operational plans. One example of a significant interagency partnership is the Border Enforcement Security Task Force (BEST). Led by ICE, the BEST teams incorporate personnel from ICE, CBP, and the U.S. Coast Guard within DHS; the DEA, FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Attorney’s Offices within the Department of Justice; as well as other key federal, state, local and foreign law enforcement agencies. BEST teams leverage federal, state, local, tribal, and foreign law enforcement and intelligence resources in an effort to identify, disrupt, and dismantle organizations that seek to exploit vulnerabilities along our borders and threaten safety and security. As of Fiscal Year 2011, there are over 690 members of 64 state and local law enforcement agencies participating in the 22 BESTs along the Southwest and Northern borders, at seaports, and in Mexico City.

Another example is the Alliance to Combat Transnational Threats (ACTT).

ACTT utilizes a collaborative enforcement approach to leverage the capabilities and resources of DHS in partnership with more than 60 law enforcement agencies in Arizona and the Government of Mexico to deter, disrupt, and interdict individuals and criminal organizations that pose a threat to the United States. Since its inception, ACTT has resulted in the seizure of more than 2.2 million pounds of marijuana, 8,200 pounds of cocaine, and 2,700 pounds of methamphetamine; the seizure of more than $18 million in undeclared U.S. currency and 343 weapons; over 16,000 aliens denied entry to the U.S. at Arizona ports of entry due to criminal background or other disqualifying factors; and approximately 342,000 apprehensions between ports of entry.

As we have taken these steps to enhance border security, we are also bringing greater fiscal discipline to our operations. The SBInet program, which began in 2005, was an attempt to provide a single one-size-fits-all technology solution for the entire Southwest border. Unfortunately, throughout its development, the program was consistently over budget, behind schedule, and simply did not provide the return on investment needed to justify it.

Last year, I directed an independent, quantitative assessment of the SBInet program, which combined the input of U.S. Border Patrol agents on the front lines with the Department’s leading science and technology experts. This assessment made clear that SBInet could not meet its original objective of providing a one-size-fits-all border security technology solution. As a result, earlier this year, I directed CBP to redirect SBInet resources to other, proven technologies – tailored to each border region – to better meet the operational needs of the Border Patrol. This new border security technology plan – which is already well underway – is providing faster deployment of technology, better coverage, and a more effective balance between cost and capability. It includes non-intrusive inspection equipment at the ports of entry and tested, commercially available technologies for immediate use between the ports.

Northern Border Security

The Obama Administration has made significant advancements in creating a secure and resilient Northern border. DHS has invested in additional Border Patrol agents, technology, and infrastructure. Currently, CBP has more than 2,200 Border Patrol agents on the Northern border, a 500 percent increase since 9/11. CBP also has nearly 3,700 CBP officers managing the flow of people and goods across ports of entry and crossings along the Northern border.

The Department has continued to deploy an array of technologies along the Northern border, including thermal camera systems, Mobile Surveillance Systems, and Remote Video Surveillance Systems. CBP successfully completed the first long-range CBP Predator-B unmanned aircraft patrol under expanded Federal Aviation Administration authorization that extends the range of approved airspace along the Northern border. Approximately 950 miles along the Northern border from Washington to Minnesota are currently covered by unmanned aircraft, in addition to approximately 200 miles along the northern border in New York and Lake Ontario – none of which were covered prior to the creation of DHS.

CBP officers and agents provide support to the Integrated Border Enforcement Teams (IBET) that operate as intelligence-driven enforcement teams comprised of U.S and Canadian federal, state/provincial and local law enforcement personnel. By incorporating integrated mobile response capability (air, land, marine), the IBETs provide participating law enforcement agencies with a force multiplier – maximizing border enforcement efforts.

Finally, in February 2011, President Obama and Canadian Prime Minister Harper announced a landmark “Shared Vision for Perimeter Security and Economic Competitiveness” that sets forth how the two countries will manage shared homeland and economic security in the 21st century. This “Shared Vision” focuses on addressing threats at the earliest point possible; facilitating trade, economic growth, and jobs; collaborating on integrated cross-border law enforcement; and partnering to secure and strengthen the resilience of critical infrastructure.

Results

Taken as a whole, the additional manpower, technology and resources we have added over the past two years represent the most serious and sustained action to secure our borders in our Nation’s history. And it is clear from every measure we currently have that this approach is working.

With respect to the Southwest border, illegal immigration attempts, as measured by Border Patrol apprehensions, have decreased 36 percent in the past two years, and are less than one third of what they were at their peak. We have matched decreases in apprehensions with increases in seizures of cash, drugs, and weapons. In fiscal years 2009, 2010, and the first half of 2011, CBP and ICE have seized 75 percent more currency, 31 percent more drugs, and 64 percent more weapons along the Southwest border as compared to the last two and a half years of the previous administration. As we have worked to combat illegal crossings, violent crime in U.S. border communities has remained flat or fallen in the past decade. Indeed, four of the biggest cities in America with the lowest rates of violent crime – San Diego, Phoenix, Austin, and El Paso – are on or near the border. Violent crimes in Southwest border counties have dropped by more than 30 percent and are currently among the lowest per capita in the Nation. Crime rates in Arizona border towns have remained essentially flat for the past decade, even as drug-related violence has dramatically increased in Mexico.

Developing Measures for Progress at the Border

As we assess the marked improvements in border security over the past two years, it is important to focus on how we can best measure progress in the future. DHS has been working to improve each of the individual metrics that are currently used to describe capabilities and results. However, it is clear we must also focus on more comprehensive and accurate measurements of the state of border security.

CBP is in the process of developing a comprehensive index that will more holistically represent what is happening at the border and allow us to measure our progress there. This process is still in its early stages and I look forward to updating the Committee as the new measures are developed. This new index will help DHS:

– Capture the “state” or “condition” of the border;
– Evaluate trends over time;
– Adjust goals and objectives; and
– Support resource allocation decisions.

We fully understand that the “state” of the border is complex and depends on many factors, but we are optimistic based on the analytical rigor thus far, that this new index will be able to combine an appropriate set of those factors as reflective of the “big picture.”

In developing these border metrics, it is important to keep in mind our ultimate goals. Combating transnational crime, while promoting legal travel and trade, makes border communities more secure, which in turn provides a basis for economic prosperity and an improved quality of life.
Illegal traffic diminishes quality of life in a number of ways, such as increased property crime. The “success stories” in border security are the communities where enforcement efforts have supported and enhanced the quality of life.

CBP has consulted with experts and stakeholders on what data to include, and how to formulate a reliable index. This process has been led by a steering committee with representatives from CBP, including the Border Patrol, OMB, and the Homeland Security Institute. To date, a list of candidate measures have been identified based on peer and stakeholder input. The data is now being analyzed and compiled into a model index, which will be reviewed by peers and external stakeholders (including those from border communities) and refined, based on that feedback.

Defining success at the border is critical to how we move forward, and how we define success must follow a few guidelines: it must be based on reliable, validated numbers and processes, tell a transparent statistical story, and draw heavily upon the values and priorities of border communities. The approach currently underway is designed to meet all of these criteria. We expect to finalize the index during the second quarter of Fiscal Year 2012.

Improvements to Legal Immigration Programs

Another critical element of an effective immigration system is ensuring that we provide immigration benefits and services to those eligible in a timely and efficient manner. Our country is a nation of laws and of immigrants, and we must remain open and welcoming to legal immigrants while supporting their integration into our society.

Over the past two years, USCIS has taken a number of actions to improve its ability to meet these goals. By streamlining and modernizing operations, USCIS is now processing applications for naturalization and other critical immigration benefits more rapidly, exceeding its goals.

As a customer-focused agency, USCIS also has taken steps to improve one of its primary interfaces with the public: www.uscis.gov. In FY 2010, USCIS launched a new online inquiry tool to make it easier to check case status, receive updates via e-mail and text message, and find information of specific relevance to an individual’s case. In addition, USCIS launched a new Citizenship Resource Center on its website that serves as a one-stop resource for students, teachers, and organizations to obtain citizenship preparation educational resources and information.

USCIS has made security enhancements to some of its key identity documents to prevent counterfeiting, obstruct tampering, and facilitate quick and accurate authentication. The Permanent Resident Card, commonly known as the “green card,” now contains several major new security features, and USCIS redesigned the Certificate of Naturalization to more effectively detect document tampering, validate identity, reduce fraud, and decrease overall expenses. DHS also has joined with the Department of Justice and the Federal Trade Commission in a nationwide initiative to combat immigration scams involving the unauthorized practice of law. This initiative seeks to protect vulnerable immigrant populations from those who seek to exploit them.

USCIS also has continued to naturalize hundreds of thousands of new Americans each year, including record numbers of members of our nation’s armed forces. In Fiscal Year 2010, USCIS granted citizenship to 11,146 members of the U.S. Armed Forces at ceremonies in the United States and abroad. This figure represents the highest number of service members naturalized in any year since 1955. In Fiscal Year 2011 (as of August 2011), USCIS has granted citizenship to 9,530 members of the U.S. Armed Forces. Since Fiscal Year 2005, USCIS has naturalized U.S. military personnel during ceremonies abroad in 25 different countries. Indeed, since September 2001, USCIS has naturalized more than 74,000 service men and women, including those serving in Iraq and Afghanistan.

Taken together, these improvements to our legal immigration system, coupled with our efforts to secure the border and enforce immigration laws in the interior, are producing significant results. We intend to make even greater strides in the coming year.

But we know that more is required to fully address our nation’s immigration challenges. Congress needs to take up reforms to our immigration system to address long-standing, systemic problems with our nation’s immigration laws. President Obama is firm in his commitment to advancing immigration reform, and I am personally looking forward to working with Congress to achieve this goal, and to continue to set appropriate benchmarks for our success in the future.
Conclusion

Chairman Smith, Ranking Member Conyers, and members of the Committee:

Thank you for inviting me to testify today. I want to thank this Committee for its support of our mission to keep America safe. I also want to thank the men and women who are working day and night to protect and defend our country, often at great personal risk. We owe them our continued support and gratitude. I will be pleased to take your questions.

This page was last reviewed/modified on October 26, 2011.

BY: Meredith Buel – Washington

The U.S. Congress is debating how to overhaul the nation’s immigration system in an effort to get foreign nationals who earn advanced degrees at American universities to stay and work in the country to help the U.S. stay globally competitive.

Some are calling it a “reverse brain drain.”

Foreign students flock to American universities to earn master’s degrees and Ph.D.s in science, technology, engineering and math.

But many, like 25-year-old Yifang Wei from Xian in central China, may not be able to get a visa to work in the United States after graduation.

“Yes, I am very worried, very worried,” said Wei.

In 2009, foreign students earned up to two-thirds of the doctorates in physics and engineering awarded by U.S. schools of higher education.

Xiao Qin is from Beijing and is working toward his Ph.D. in computer science at Georgetown University in Washington. He would like to work for Google, Yahoo or Microsoft.

“Obviously, we prefer to stay here for several years, but if we cannot get any valid visa we have to leave,” he said.

The United States limits the number of foreigners who can seek careers in the United States, and critics say restrictive immigration policies hurt America’s ability to retain top students.

Representative Zoe Lofgren of California said, “While we once asked the brightest minds in the world to come and make their homes here, we now turn them away. Having educated and trained the world’s best students in our universities, we no longer welcome them to enrich this nation.”

High-tech companies recruit workers at the nation’s top universities. But some, like Texas Instruments, say it can take 10 years for their foreign workers to become permanent U.S. residents.

Darla Whitaker, senior vice president at Texas Instruments, said, “This is not sustainable. It hurts our company and our industry, and it places burdens and stresses on our employees.”

The United States now limits the number of immigrants from other countries on a country-by-country basis, meaning students from large nations generally have the longest wait.

A recent study by the National Foundation for American Policy says a highly skilled Indian national could wait 70 years for permanent status.

Vivek Wadhwa conducts research about immigrant entrepreneurs, and is on the faculty of Harvard and Duke Universities.

“We are out of touch. We are in a knowledge economy. It is all about competition. If we don’t keep these people, if we don’t compete, we are going to lose. We are going to become a third world country and they are going to become like us,” said Wadhwa.

Congress is studying ways to change America’s immigration policies.

So far there has not been a consensus, however, on how to reverse the brain drain and keep scholars like Yifang Wei and Xiao Qin in the United States once they graduate from one of America’s top universities.

“All children have the right to a first-class education,” Governor Quinn said. “The Illinois DREAM Act creates more opportunities for the children of immigrants to achieve a fulfilling career, brighter future and better life through higher education.”

Senate Bill 2185, sponsored by Senate President John Cullerton (D-Chicago) and Rep. Eddie Acevedo (D-Chicago), establishes a nine-member Illinois DREAM Fund Commission to manage the program, whose members are appointed by the Governor. The commission will help establish privately-funded scholarships for students who have resided with their parents while attending high school in Illinois, earned their high school diploma, attended school in Illinois for at least three years, and have at least one parent who immigrated to the United States.

In addition, the new law allows any person with a Social Security or taxpayer identification number to participate in a state-operated college savings pool. It also requires high school counselors to provide college information to all children of immigrants. Children of immigrants will have unprecedented opportunities to access higher education as a result of the Illinois Dream Act.

“We should be opening, not shutting doors of opportunity for young students regardless of how or why they are living in Illinois,” said President Cullerton. “This new law moves the state beyond the rhetoric of equal opportunity by making the dream of a college education a reality for more of Illinois’ outstanding students.”

The new law was one of Governor Quinn’s top priorities during the spring legislative session. The Governor recognized that it would ensure that Illinois continues to lead the nation in increasing access to top-quality education, which is critical to retaining our best and brightest students and ensuring our continued success in the competitive global economy.

Students, community leaders and elected officials from across the state joined Governor Quinn to celebrate the new law that brings more affordability and better access to higher education in Illinois.

“Immigrants are a driving force in our city’s cultural and economic life, and opening the way for all Chicago students to earn an excellent higher education will make our city even stronger,” said Chicago Mayor Rahm Emanuel. “I am proud that families and students across Illinois will now have a better shot at the American Dream — which starts with a great education.”

With an estimated 65 percent of immigrant students coming from households earning below 200 percent of the poverty line, the financial barriers to higher education for academically qualified immigrant students are steep. Through the DREAM commission, Illinois leaders will now be able to raise private funds to help these students achieve their full potential.

“We thank Governor Quinn for his continuous support and his tireless work for the immigrant community,” said Lawrence Benito, Deputy Director of the Illinois Coalition for Immigrant and Refugee Rights (ICIRR). “The signing of this bill into law is historic and it confirms that Illinois is not only an immigrant-friendly state but also a national leader on moving fair, humane, and practical solutions.”

The DREAM Act passed with bipartisan legislative support and with the strong support of the education community. The commission will provide training to school service personnel and work with admission and financial aid officers and high school counselors across Illinois to help students utilize the wide array of higher education opportunities.

“The Illinois DREAM Act is a crucial step in the right direction, ensuring that worthy students are no longer denied the life-changing opportunity of college simply because their immigration status puts needed financial aid out of reach,” said University of Illinois President Michael J. Hogan. “I’m grateful to our legislators and Governor Quinn for supporting the shared vision that bright minds are our most precious resource and must be cultivated, not thwarted by outdated immigration laws.”

http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=2&RecNum=9587

Introduction

U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Questions & Answers

Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q: What factors does USCIS consider when evaluating the employer-employee relationship?

A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q: What if I cannot submit the evidence listed in the memorandum?

A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.

Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.

Q: What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?

A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.

For more information on USCIS and its programs, call 1-800-375-5283.

U.S. Citizenship and Immigration Services (“USCIS”) still has slots available in fiscal year 2012 for foreign workers in specialty occupations under the H-1B program.

Thus, employers who seek an employment start date on or after October 1, 2011 (the start of the 2012 fiscal year) for foreign workers in specialty occupations can still file visa petitions on behalf of those workers. By rule, the specialty occupations include, but are not limited to: scientists, engineers and computer programmers.

Petitions should be filed as soon as possible in order to avoid being shut down by the annual cap limitation for the H-1B program (cap amount of 65,000 for FY 2012).

Some petitions will be exempt from the cap if they are made on behalf of certain individuals who have obtained an advanced U.S.degree, but USCIS grants the exemption only to the first 20,000 applications.

The current H-1B counts for petitions filed to date are as follows through July 1, 2011:

• H-1B Regular Cap: 18,400 cap-eligible petitions

• H-1B Advanced Degree Exemption: 11,900 petitions

Up to 6,800 visas may also be set aside for workers from Chile and Singapore, pursuant to the H-1B1 program arising out of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

H-1B petitions, in order to be properly filed, must be complete and accurate. Necessary documents include, but are not limited to the following:

• A Form I-129 petition with appropriate supplements;

• Labor condition applications on Form ETA 9035;

• Required evidence of a beneficiary’s educational background;

• Duplicate copies of certain documents; and

• Consulate-specific forms required by the Department of State where appropriate.

If you are in need of more information about business immigration, please check the pertinent section of our Website at www.visaserve.com or call our offices at (201) 670-0006.

There are five statutory bases for a waiver of the two-year foreign residence requirement:

1. a no objection statement from the home government,
2. a request from an interested U.S. Government agency on the alien’s behalf,
3. a claim that the alien will be persecuted if he or she returns to his or her country of residence,
4. a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if the alien is required to return to his or her home country, and
5. a request from a state public health department, or its equivalent, on the alien’s behalf (this only applies to foreign medical graduates who obtained J-1 status for graduate medical training or education).

No Objection Statements

• The consular section of the alien’s embassy in Washington, D.C., can forward a “no objection” statement to the Department of State on the alien’s behalf. The Embassy forwards the “no objection” statement directly to the Waiver Review Division at the Department of State.
• Foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) to do their clinical training cannot apply for a waiver based on a “no objection” statement.
• It is the policy of the Waiver Review Division not to reconsider “no objection” statement applications once a final determination has been made. The alien may, however, reapply using another statutory basis for waiver should another one apply to the alien’s situation.
Interested U.S. Government Agencies
• A waiver may also be based on an Interested U.S. Government agency (IGA) application.
• A letter from a U.S. Federal Government agency, signed by the head of that agency or a designated official, explaining why granting such a waiver is in the public interest of the U.S. and why it would be detrimental to the agency if the exchange visitor returns home to fulfill the two-year requirement. The IGA request letter is sent directly by the agency to the Waiver Review Division.
• An exchange visitor physician, who plans to provide medical service in an underserved area in the U.S. on behalf of an interested U.S. Government Agency, may obtain a waiver based on an interested U.S. Government agency application for a physician. This is different waiver basis than the Conrad program, which allows individual states to nominate up to 30 foreign medical graduate J-1 physicians for a waiver.
• The Interested U.S. Government Agency is responsible for gathering and sending to the Waiver Review Division the documents for the application package.
• The Department of Veterans Affairs requests on behalf of J-1 physicians to serve in VA hospitals: VA hospitals do not have to be in an underserved area and the VA applications must include a signed memorandum of agreement between a physician and a hospital in lieu of a three-year contract.
• The following U.S. Government agencies may apply for the waiver on behalf of foreign medical graduates to practice medicine: Appalachian and Delta Regional Commissions, Department of Health and Human Services, Department of Veterans Affairs and Department of Interior for Indian Reservations. J-1 foreign medical graduates may also apply through an individual state’s department of health Conrad program.

Persecution

J waivers based on persecution must be filed with both U.S. Citizenship and Immigration Services and the Department of State. The Department of States J waiver application is submitted prior to the filing of the U.S. Citizenship and Immigration Services form I-612. U.S. Citizenship and Immigration Services then makes a determination of probable persecution and sends it to the Waiver Review Division.

• Persecution claims should not be mixed with claims of exceptional hardship.
• Requests to reopen persecution applications are made through the U.S. Citizenship and Immigration Services.
Exceptional Hardship
A waiver may be based on exceptional hardship to an alien’s American citizen or permanent resident spouse or child.
• The exceptional hardship J waiver must be filed with both U.S. Citizenship and Immigration Services and the Department of State.
• The application to the Department of State should be filed prior to submitting the I-612 to U.S. Citizenship and Immigration Services or after U.S. Citizenship and Immigration Services has acted favorably on an I-612.
• Requests to reopen an exceptional hardship application are made through the U.S. Citizenship and Immigration Services.
State Department of Public Health, CONRAD Waivers
A waiver based on a request from a state department of public health may be requested.
• The state public health department, if it has agreed to sponsor the exchange visitor for a waiver, must send directly to the Waiver Review Division the documents required for the waiver.
J-2s
• The J-2 spouse and/or child of a J-1 who is subject to the two-year home residence requirement is subject to the same requirements as a J-1.
• If the J-1 receives a favorable recommendation from the Department of State, which is forwarded to U.S. Citizenship and Immigration Services, and U.S. Citizenship and Immigration Services grants the waiver, then the J-2s will also benefit from the waiver.
• J-2 cannot independently apply for a waiver. However, in cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 on a limited case-by-case basis. If the J-2 feels that his or her case merits special consideration by the Waiver Review Division, he or she should submit the appropriate statements of reason. The Division will also need the J-1’s DS-2019/IAP-66 forms and divorce decree or death certificate, whichever is applicable. For a dependent J-2 son or daughter who has turned 21 the Division will also need a copy of his/her birth certificate.
Exchange Visitors who do not return to their home but move to another country.
• The country which was the alien’s country of legal permanent residence at the time he or she received his or her J-1 status is the country to which he or she must return to fulfill the two-year foreign residence requirement.
• The Waiver Review Division considers the J waiver application complete and ready for review when all the required documents have been received, which usually includes completed DS-3035, payment of the processing fee, required documents from third parties such as a No Objection Statement, Request from an Interested Government Agency Waiver (IGA), a request from a state department of public health, or U.S. Citizenship and Immigration Services findings of exceptional hardship or persecution on I-613, and copies of all DS-2019/IAP-66 forms. And, if there has been U.S. Government funding, input from the U.S. Government funding source.

Recommendations

• When a favorable recommendation for a waiver is made and transmitted by the Waiver Review Division to the U. S. Citizenship and Immigration Services, U.S Citizenship and Immigration Services will make the final decision regarding the waiver and will contact the exchange visitor directly. The most common reason J waiver applications are denied is because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason waiver applications from exchange visitors who received U.S. Government funding are generally denied.
• There is no appeal process for denials/unfavorable recommendations for a waiver by the Waiver Review Division. However, the alien subject to Section 212 (e) may be eligible to reapply for a waiver under another basis.
• If a J waiver applicant has new information that may affect his or her eligibility for a waiver recommendation the following applies: If the applicant has already received an unfavorable recommendation from the Waiver Review Division, that decision cannot be appealed. However, in exceptional hardship and persecution cases, if the J waiver applicant believes he or she has new relevant information which may result in a different finding, he or she may consider applying again to U.S. Citizenship and Immigration Services, but needs to start the process anew. If the J waiver applicant’s application is still pending with the Waiver Review Division and the J waiver applicant has new relevant information, he or she may forward that information on to the Waiver Review Division.

Advisory Opinions

• An advisory opinion is a request for the Waiver Review Division’s opinion on whether the Exchange Visitor is subject to the INA 212(e) two-year foreign residence requirement.
• Advisory opinions should be sought when it is unclear whether an exchange visitor is subject to the INA 212(e) two-year foreign residence requirement.

Skills List Questions

• The exchange visitor’s skills list is a list of fields of specialized knowledge and skills that are needed in the exchange visitor’s home country for its development.
• The current skills list is published in the Federal Register, Volume 62, No. 11, January 16, 1997 (pages 2448 to 2516). The 1972 skills list appeared in Vol. 37, No. 80, April 25, 1972, 8099-8117. The 1984 skills list appeared in Vol. 49, No. 114, June 12, 1984, 24194-24249. Amendments to the skills lists were published in the following Federal Registers: Vol. 43, No. 29, February 10, 1978, 5910-5912; Vol. 51, No. 189, September 30, 1986, 34701; Volume 52, No. 24, February 5, 1987, 37444; Volume 52, No. 53, March 19, 1987, 8700; Volume 53, No. 242, December 16, 1988, 50619; Volume 58, No. 143, July 28, 1993, 40466.
• The skills list from the country of the exchange visitor’s last permanent residence at the time he or she obtained J status will apply. If both are the same, then the skills list from his or her country of nationality would apply. Some countries do not have a skills list.
• The exchange visitor should consult with the responsible program officer for the J program for assistance in making a determination of whether or not government funding was received.
• Funding provided by an international organization makes an exchange visitor subject to the two-year home residence requirement.
• The period of time a former exchange visitor spends in the U.S. or a third country may count towards fulfillment of the two-year home residence requirement if the person is employed by his or her government in its military service or career foreign service and that person is serving in a country other than the home country at the behest of his or her government. Before the Department can determine that the individual has satisfied the foreign residence requirement, it requires a written statement from an official of the home government (through the home-country’s embassy in Washington, D.C.) that the individual was or will be serving in the U.S. or third country in the service of his or her home country and at that government’s request.

Let us assist you with your waiver questions. E-mail to us at info@visaserve.com.

WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) has announced special relief for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011. This relief applies only to students who were lawfully present in the United States in F-1 status on Feb. 1, 2011, and enrolled in an institution that is certified by ICE’s Student and Exchange Visitor Program.

ICE has published a notice in the Federal Register suspending certain regulatory requirements in order to allow eligible Libyan F-1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status.

“We want to ensure that students from Libya, who were here when civil unrest began, are able to continue their studies without the worry of financial burdens due to the armed conflict,” said Louis Farrell, director for the Student and Exchange Visitor Program. “The changes announced in this notice will allow eligible students from Libya to obtain employment authorization so that they can meet their basic living expenses while continuing to pursue their education in the United States.”

There has been an ongoing armed conflict in Libya since February. Approximately 2,000 Libyan F-1 students are currently enrolled in schools in the United States. The armed conflict in Libya has increased the financial burden on many of these students, who previously relied on assistance from the Libyan government or family members in Libya to meet basic living expenses. In addition, the situation in Libya has made it unfeasible for these students to safely return to Libya in the foreseeable future.

ICE manages the Student and Exchange Visitor Program and the Student and Exchange Visitor Information System, which automates the process for collecting, maintaining, and managing information about international foreign students, exchange visitors and their dependents during their stay in the United States.

The Department of State has also announced special relief for certain Libyan J-1 exchange visitors who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011. More information about this relief is available in the Federal Register.

To learn more about the Student and Exchange Visitor Program, visit www.ice.gov.

A fact sheet regarding employment authorization eligibility for certain Libyan students is available on the website.

(Tuesday, May 24, 2011)

San Diego — U.S. Customs and Border Protection (CBP) officials are reminding foreign travelers and Mexican border crossing card (or “laser visa”) holders about requirements to enter the United States, how to obtain an I-94 permit, and when an I-94 permit is required in time for the busy summer travel season.

Under U.S. immigration law, an applicant for admission into the U.S. as a temporary visitor for business or pleasure must prove to a CBP officer that their projected stay in the U.S. will be temporary.

Unless otherwise exempted, each foreign traveler admitted into the United States is issued an I-94 permit (arrival/departure record), as evidence of the terms of their admission.

Mexican citizens entering the country through the southern land border with a border crossing card (“laser visa”) are exempted from the requirement for an I-94 permit unless they are intending to remain in the U.S. for more than 30-days and/or will travel more than 25 miles from the border. Applicants who present a border crossing card (or laser visa) are not eligible to work in the United States.

Those applicants requiring an I-94 permit must demonstrate that they are financially solvent and have sufficiently strong ties to their country of origin, including a home abroad they do not intend to abandon.

“Ties” are the various aspects of a person’s life that bind him or her to his or her country or residence. Some examples of ways to document these ties can be pay stubs for a person’s employment/income, a house or apartment mortgage or rental receipt, bank account records, utility bills, etc.

It is not possible to specify the documents applicants for admission should carry, since each applicant’s circumstances vary greatly. Applicants should carry with them whatever documents they think demonstrate their individual circumstances.

All traveling family members need to be present during the I-94 application process.

The I-94 permit, which costs $6, allows visitors to travel further than 25 miles from the border and remain in the U.S. for more than 30 days.

By U.S. law, a foreign traveler must posses his or her entry documents, and if required, the

I-94 permit, with them at all times while in the United States.

In addition, at checkpoints, U.S. Border Patrol agents check foreign travelers for entry documents and the I-94 permit. Travelers not in possession of their entry documents and an I-94 permit may have their visa cancelled and be deported from the United States.

For more information about the CBP form for an I-94 permit, please visit the CBP Web site.

(Filling Out Arrival-Departure Record, CBP Form I-94, for Nonimmigrant Visitors with a Visa for the U.S. )

(Entering the U.S. – Documents required for Foreign Nationals (International Travelers)

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Contact For This News Release is:

Jacqueline Wasiluk
CBP Public Affairs San Diego
Phone: (619) 744-5245

U.S. Citizenship and Immigration Services (USCIS) today launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process.

“I-9 Central is the latest in our ongoing efforts to better serve the 7.5 million employers who use Form I-9 every time they hire an employee,” said USCIS Director Alejandro Mayorkas. “It provides critical information for all employers – whether they hire a single employee or hundreds – in an accessible, intuitive and comprehensive online format.” The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include E-Verify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274)” published earlier this year.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process. I-9 Central complements existing Form I-9 resources including the current Form I-9 Web page, the form instructions, and the above-referenced “Handbook for Employers.” USCIS also offers free webinars on completing Form I-9.

By law, U.S. employers must verify the identity and employment authorization for every worker they hire after Nov. 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9. Visit or link to I-9 Central at www.uscis.gov/I-9central.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.